To what culture does the concept of “cultural property” belong? Who owns this idea?

It has, like much material property in the last 50 years, often changed hands. And in doing so, it has also changed meanings and grown in importance. It now affects the development of museums, alters the nature of international commerce and even seems to subsume traditional notions of property.

It was brought to modern prominence in 1954 by UNESCO as a way of characterizing the special status of monuments, houses of worship and works of art — objects that suffered “grave damage” in “recent armed conflicts.” In its statement Unesco asserted that such “cultural property” was part of the “cultural heritage of all mankind” and deserved special protection.

But the framers of that doctrine with its universalist stance would hardly recognize cultural property in its current guise. The concept is now being narrowly applied to assert possession, not to affirm value. It is used to stake claims on objects in museums, to prevent them from being displayed and to control the international trade of antiquities.

The so called tragedy of the commons recognizes that if no one owns a resource, then there is little incentive to manage it well. We often institutionalize property rights to protect such resources. (An alternative is to retain the resource in a commons, but to institutionalize systems to manage that common.)

The tangible cultural property to which the Rothstein-Cuno analysis applies is movable -- paintings, sculptures, etc., the antiquities we often associate with museums. Of course it was not UNESCO that first treated these objects as property. Kings and the wealthy did so for millenia. UNESCO helped recognize the concept of "cultural property", reflecting the fact that such objects often have transcendental value within a specific culture. Thus a religious artifact may have huge value among the adherents of the religion involved and little value to others.

UNESCO has also helped recognize the concept of World Heritage. Thus everyone has a legitimate interest in some objects of transcendental beauty and cultural importance, such as the Mona Lisa or the contents of Tutankhamun's tomb. The crux of the issue addressed by Rothstein and Cuno is the property that is both claimed by specific cultural groups and as broader world heritage.

It would seem that the custodian of any cultural property or item of world heritage should have a responsibility to protect that property and pass it on to future generations. The owners of a cultural property or item of world heritage would also seem to share that responsibility, and indeed the responsibility to allow others to act as custodians of such objects only if they can realistically guarantee to safeguard the property.

So who are the owners of cultural property. The oldest statues in the world were found in what is now Jordan, and date back some 8,000 years. Jordan is a historic crossroads and modern Jordanians have little in common with the folk who lived i that geographic area 8,000 years ago. So, one may ask, why should they have ownership of those ancient statues? In this case the answer is clear. They have them, the artifacts were found in their land under their law, and the Jordanians ascribe cultural value to them as well as recognizing their status as world heritage.

The situation is not so clear when a piece of cultural property found in one country is located in another, both claiming legitimate ownership. Greek antiquities in the United Kingdom or Egyptian antiquities in the United States come to mind. UNESCO has developed conventions that help to allow the parties to such disputes to negotiate their solution, or at least adjudicate them. They don't always work, but those conventions represent a major advance over the anarchy of the past. Still, Rothstein and Cuno suggest that often countries have gone too far in seeking to recognize the rights of cultural property ownership based on things being found in areas now occupied by the claiming party.

In last week's meeting, the U.S. National Commission for UNESCO recommended that UNESCO institutionalize mechanisms that would allow long term loans of cultural property from one nation to another without the transfer of ownership. There have been loans of museum exhibits for many years, but the new mechanisms would be for a decade or more. The new mechanism would allow sharing of experience of world heritage, while recognizing ownership rights to cultural heritage. Sounds good to me!

John Daly(The ideas expressed in this posting are mine alone, and don't necessarily reflect those of any organization.)